The Slave-State Origins of Modern Gun Rights

[struggle4progress]

Gun-rights advocates have waged a relentless battle to gut what remains of America’s lax and inadequate gun regulations. In the name of the Second Amendment, they are challenging the constitutionality of state and municipal “may issue” regulations that restrict the right to carry weapons in public to persons who can show a compelling need to be armed. A few courts are starting to take these challenges seriously. But what the advocates do not acknowledge—and some courts seem not to understand—is that their arguments are grounded in precedent unique to the violent world of the slaveholding South.

Claims that “may issue” regulations are unconstitutional have been rejected by most federal appellate courts—that is, until last year, when a court in California broke ranks and struck down San Diego’s public-carry regulation. This year, a court did the same with the District of Columbia’s rewritten handgun ordinance. Both decisions face further review from appellate courts, and perhaps also by the Supreme Court. If the justices buy this expansive view of the Second Amendment, laws in states such as New York, New Jersey, Rhode Island, Massachusetts, and Hawaii with the strictest public carry regulations—and some of the lowest rates of gun homicide—will be voided as unconstitutional ...

The opinion most enthusiastically embraced by public-carry advocates is Nunn v. State, a state-court decision written by Georgia Chief Justice Joseph Henry Lumpkin in 1846. As a jurist, Lumpkin was a champion both of slavery and of the Southern code of honor. Perhaps, not by coincidence, Nunn was the first case in which a court struck down a gun law on the basis of the Second Amendment. The U.S. Supreme Court cited Nunn in District of Columbia v. Heller, its landmark 2008 decision holding, for the first time in over 200 years, that the Second Amendment protects an individual right to possess a handgun in the home for self-defense. Why courts or gun-rights advocates think Lumpkin’s view of the right to bear arms provides a solid foundation for modern firearms jurisprudence is puzzling. Slavery, “honor,” and their associated violence spawned a unique weapons culture. One of its defining features was a permissive view of white citizens’ right to carry weapons in public. ...

In the North, publicly carrying concealable weapons was much less popular than in the South. In 1845, New York jurist William Jay contrasted “those portions of our country where it is supposed essential to personal safety to go armed with pistols and bowie-knives” with the “north and east, where we are unprovided with such facilities for taking life.” Indeed, public-carry restrictions were embraced across the region. In 1836, the respected Massachusetts jurist Peter Oxenbridge Thacher instructed a jury that in Massachusetts “no person may go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to apprehend an assault or violence to his person, family, or property.” Judge Thacher’s charge was celebrated in the contemporary press as “sensible,” “practical,” and “sage.” Massachusetts was not unusual in broadly restricting public carry. Wisconsin, Maine, Michigan, Virginia, Minnesota, Oregon, and Pennsylvania passed laws modeled on the public-carry restriction in Massachusetts ...

http://www.theatlantic.com/politics/archive/2015/09/the-origins-of-public-carry-jurisprudence-in-the-slave-south/407809/